(concurring in part, dissenting in part).
Although I agree with the majority’s ruling on the in lieu arguments, I dissent on the imposition of the tax which is the crucial holding of the majority opinion.
Congress’ intent in enacting 49 U.S.C. § 1513(d) was “to prohibit discriminatory property taxes imposed on air carriers.” Aloha Airlines v. Director of Taxation, 464 U.S. 7, -, 104 S.Ct. 291, 293, 78 L.Ed.2d 10, 13 n. 3 (1983). See also the letter from the United States Senate Committee on Commerce, Science, and Transportation, dated December 21, 1982, attached hereto and by this reference incorporated herein, which clearly reflects that the purpose of the act “is to prevent the *112continued discrimination of ad valorem taxation of airline flight property.” That Congress has the authority to so control state taxation of air carriers in interstate commerce is beyond question. See Arizona Public Service Co. v. Snead, 441 U.S. 141, 150, 99 S.Ct. 1629, 1634, 60 L.Ed.2d 106, 113 (1979). Congress’ authority to so regulate is derived from the Commerce Clause of the United States Constitution and it is axiomatic that when a federal statute forbids state imposition of a tax, the state statute imposing the tax is preempted. Aloha Airlines, 464 U.S. at -, 104 S.Ct. at 294, 78 L.Ed.2d at 15.
The majority, however, determines that 49 U.S.C. § 1513(d) does not preempt the airline flight property tax imposed by SDCL ch. 10-29. The majority’s rationale is that because locally assessed personal property is exempt from a property tax levy, it is not commercial or industrial property subject to a property tax levy under 49 U.S.C. § 1513(d)(2)(D), and thus, it cannot be used for discriminatory ratio or rate comparisons.
Such a construction of 49 U.S.C. § 1513(d) was recently rejected by the Supreme Court of North Dakota in Northwest Airlines v. State Bd. of Equalization, 358 N.W.2d 515 (N.D.1984), and I accept the reasoning advanced therein over that of the present majority. Chief Justice Erickstad, in addressing an assertion by the State similar to the majority’s rationale herein, wrote for a unanimous court that: “The construction urged by the State would allow discriminatory taxation of air carrier transportation property as long as a state imposed no tax at all on other commercial and industrial property. We cannot reasonably so construe the statute.” Id., 358 N.W.2d at 517. I, too, reject such a construction of 49 U.S.C. § 1513(d). The discrimination sought to be imposed against air carriers in this state is absolute.
Personal property taxes were repealed in 1978. See 1978 S.D.Sess. Laws chs. 72 and 73. The State, however, through SDCL ch. 10-29, still seeks to impose a personal property tax on airline flight property while all other commercial and industrial property is exempt from personal property taxes. By enacting 49 U.S.C. § 1513(d), the United States Congress sought and intended to eliminate burdens on interstate commerce by prohibiting discriminatory state taxes imposed on air carrier transportation property. To permit, as the majority’s interpretation does, the taxation of airline personal property when all other commercial and industrial personal property is exempt from taxation, is to permit a “greater discrimination when the [commercial and industrial] property is completely exempt than when it is taxed, but at a lower rate. That is unreasonable.” Id., 358 N.W.2d at 517. Since the level of assessment on commercial and industrial personal property is zero, the level of assessment of the airlines’ personal property must be reduced to zero. “A construction which accords with reason is to be preferred to a literal construction involving a palpable absurdity.” Rice v. City of Watertown, 66 S.D. 221, 223, 281 N.W. 116, 117 (1938).
“[Assessing and taxing the Airlines’ personal property while exempting other commercial and industrial personal property from taxation is prohibited by 49 U.S.C. § 1513(d).” Northwest Airlines, 358 N.W.2d at 517. I would reverse the circuit court and rule that 49 U.S.C. § 1513(d) forbids the taxes imposed by SDCL ch. 10-29, and thus the latter is preempted by federal law.
United States Senate
COMMITTEE ON COMMERCE, SCIENCE, AND TRANSPORTATION
Washington, D.C. 20510
December 21, 1982
Mr. Paul R. Ignatius
President
Air Transport Association of America
1709 New York Avenue, N.W.
Washington, D.C. 20006
*113Dear Mr. Ignatius:
You have requested, on behalf of your airline members, clarification of the legislative intent of Section 532 of the Tax Equity and Fiscal Responsibility Act of 1982 (the “Act”) concerning the assessment, levying or collecting of ad valorem flight property taxation of airline companies.
The purpose of the Act is to prevent the continued discrimination of ad valorem taxation of airline flight property. However, the Act must be interpreted in a manner that recognizes that all states do not have the same timetable for assessing and collecting such taxes. It was not intended to require a state to refund property taxes which have been levied and collected prior to the effective date of the Act, September 3, 1982.
The legislative intent is supported by Subparagraphs (B) and (C) of the Act which provide that relief from discriminatory assessments must be made when the taxes have not been actually levied and collected before the effective date of the Act. Furthermore, the purpose of Subparagraph (A) was to preclude discriminatory assessments, in the event they had not been made by September 3, 1982.
Unless a state has levied and collected discriminatory ad valorem flight property taxes on airline companies before September 3, 1982, that method of taxation should not be in effect during 1982.
Sincerely,
/s/ Norman Y. Mineta
/s/ Bob Packwood
/s/ Nancy Landon Kasselbaum
/s/ Howard W. Cannon